Monday, June 22, 2015

HEFCE, Elsevier, the “copy request” button, and the future of open access

At
the 2001 meeting that launched the Budapest Open Access Initiative (BOAI) the newly-fledged OA
movement outlined two strategies for making the scholarly literature freely
available. Later dubbed green OA and gold OA, these are now
the two primary means of providing open access, and both types have been mandated by
research funders in the UK. For instance, in 2013 Research Councils UK (RCUK) introduced an OA policy that favours
gold open access, and in 2014 the Higher Education Funding Council for England (HEFCE) announced what is
essentially a green OA policy, which will come into force next year. So how does the future for open
access look?

Just to remind ourselves: With gold OA,
researchers publish their papers in an open access journal and the publisher
makes them freely available on the Internet as a natural part of the
publication process. With green, OA researchers continue to publish in
subscription journals, but then self-archive a version of their work in an open
repository, either a central repository like PubMed Central, or an institutional
repository. Meanwhile, the official version of the paper (version of record)
remains behind a subscription paywall on the publisher’s site.

BOAI did not specify that OA journals
should levy an article-processing charge (APC), but while OA advocates point
out that most OA journals do not
charge a fee, the reality (unless something changes) is that the
pay-to-play model is set to dominate OA publishing.

Importantly, this means that although
BOAI attendees assumed OA publishing would be less costly than traditional subscription
method, use of the APC will make scholarly publishing more expensive, certainly
during the transition to open access (which could last indefinitely).

And to the chagrin of OA advocates, much
of the revenue generated by APCs is currently being sucked up by traditional
publishers like Elsevier and Wiley, especially through the use of hybrid OA.

In reviewing the figures for 2013-2014,
for instance, Wellcome’s Robert Kiley reported
that Elsevier and Wiley “represent some 40% of our total APC spend, and are
responsible for 35% of all Trust-funded papers published under the APC model.”
(74% of the papers concerned were published as hybrid OA).

The story is similar at RCUK. As the Times Highernoted
in April: “Publishers Elsevier and Wiley have each received about £2 million in
article processing charges from 55 institutions as a result of RCUK’s open
access policy.” In total RCUK paid out £10m, which is in addition to the subscription
fees universities are already paying.

In effect, it would seem, traditional
publishers are in the process of appropriating gold OA, and doing so in a way that
will not only ensure they maintain their current profit levels, but that will
likely increase them. And the profits of scholarly publishers, OA advocates argue,
are already obscenely
high.

Almost OA

But green OA advocates maintain that this
is not inevitable, and have long argued that if implemented wisely, and
strategically, open access can squeeze out the excessive costs of scholarly
publishing, and so reduce publisher profits. However, they insist, this will only
happen if researchers self-archive their subscription papers rather than opt
for pay-to-publish. If researchers do this, they say, publishers will have to
compete with repositories for access provision, and so will be compelled
to downsize their operations. This in turn will put downward pressure on
costs (and thus any publishing fees). Only at the point where these costs have
fallen, argue green OA advocates, should researchers consider paying to
publish.

But green OA has its own issues. Indeed,
critics argue that is has an incurable Achilles Heel. Specifically, since
researchers invariably have to assign copyright (or at least exclusive
publishing rights) to publishers when taking the subscription route, green OA will
always be a hostage to self-archiving embargoes. That is, most publishers
prohibit self-archived papers being made OA for a period of time after
publication — generally between 6 months and 4 years.

Moreover, these critics argue, when
publishers feel any kind of threat from self-archiving they will naturally seek
to limit and eventually emasculate it — by,
for instance, introducing embargoes where they do not currently exist, by lengthening
existing embargoes, or by complicating and obfuscating their self-archiving
rules in order to deter researchers from opting for green OA — as theys have
sought to do on a number of occasions already (e.g. here, here and here).

In an attempt to neutralise publisher
embargoes, therefore, in 2006 green OA advocate Stevan Harnad proposed what
he called the Immediate-Deposit/Optional-Access
(ID/OA) Mandate. This type of OA policy requires all mandated researchers
to deposit their papers in an open repository at the point of acceptance by a
journal. When depositing, however, they can specify whether the work is made
available on an open access basis, or (where an embargo applies) on a closed
access basis. Harnad dubbed
this “Almost OA”.

Fundamental to the ID/OA mandate is the
so-called “copy request” or “fair dealing” button. When implemented in a
repository this enables closed access papers to be made freely available to anyone
who requests a copy. To do this they simply click on the button in the
bibliographic record, and the repository software then forwards the request to
the author who, explains
Harnad, “can click once to comply with the request”.

If the author approves the request the
repository software then sends the requester a copy of the document, or more
usually a private link to the full text.

The ID/OA mandate combined with the “copy
request” button, explains
Harnad, was “specifically formulated” to ensure that providing immediate access
to papers is “immune from any delays or embargoes (based on publisher policy or
copyright restrictions).”

Over the past nine years green OA
advocates have advocated tirelessly for institutions and funders to introduce
ID/OA mandates, and for institutional repositories to implement the “copy
request” button. They also recommend that, in order to ensure compliance,
mandates should be tied
to the evaluation procedures used by the institution’s promotion and tenure
committee.

And this advocacy has borne fruit, initially
with the pioneering ID/OA mandate
introduced at the University of Liège.

The HEFCE policy states that, “to be
eligible for submission to the post-2014 REF, authors’ final peer-reviewed
manuscripts must have been deposited in an institutional or subject repository
on acceptance for publication. Deposited material should be discoverable, and
free to read and download, for anyone with an internet connection.”

Importantly, HEFCE adds: “authors can
comply with the policy by making a ‘closed’ deposit on acceptance. Closed
deposits must be discoverable to anyone with an Internet connection before the
full text becomes available for read and download (which will occur after the
embargo period has elapsed). Closed deposits will be admissible to the REF.”

Many OA advocates have expressed
unhappiness with HEFCE’s decision to allow closed deposits, and disappointment that
it will permit publisher embargoes of up to 12 months for STEM subjects and 24
months for HSS subjects. But Harnad insists that this is not problematic,
because the button can free closed deposit papers on request, and so moot any publisher
embargo.

The HEFCE policy in conjunction with the
“copy request” button, he has
written, will “detoxify embargoes” and “plant the seeds for their speedy
extinction, by depriving publishers of the power to delay access-provision with
their embargoes.”

But will the HEFCE policy live up to
Harnad’s promise? Specifically, can we expect it to “plant the seeds” for the
extinction of embargoes?

Set in concrete?

Currently, the signs are not great.
Eleven months after HEFCE’s announcement (and doubtless in response to it),
Elsevier published a set of new sharing
and hosting policies that, far from signalling the extinction of publisher
embargoes, would seem more likely to set them in concrete.

Most significantly, where previously
authors were permitted to make papers they deposit in their institutional
repository freely available from day one, henceforth Elsevier-published papers
can only be made OA after the expiration of the specific journal’s embargo — as
Harnad was quick to complain.

But if Harnad is right to argue that the
button moots any publisher embargo does this matter?

It would seem so, for two reasons.

First, it is far from clear that
researchers routinely respond to copy requests. Certainly that would seem to be
the conclusion of a 2010 study
undertaken by a group of open access advocates (including Harnad).

While by no means a detailed
or extensive study (reporting as it does on
the use of the button in just three institutional
repositories) the findings are not encouraging. Approval rates [i.e. when
authors responded positively to a copy request] in these institutions varied
from 27% (University of Minho), through 47% (University of Southampton) to 60% (University
of Stirling).

Moreover, these rates have subsequently fallen
at the University of Minho, to just 23% last year. We don’t know whether
Southampton and Stirling have seen a similar drop, but the director of the
University of Minho’s documentation services Eloy Rodriguesreports
that researchers quickly get “tired” of using the button.

Second, it has yet to be satisfactorily
established that it is lawful to use the “copy request” button.

Harnad and fellow OA advocates argue that its use is covered by
the fair use/fair dealing rules
associated with copyright. But not everyone agrees. For instance, a researcher
at a US university told me recently that the button has not been
implemented in his repository because the university lawyer thinks it is
unlawful.

Either way, Elsevier now seems keen to outlaw
use of the button (as commentators were quick to point out).
In its new hosting policy, for instance, the publisher states
that manuscripts should “Not be used to substitute for services provided
directly by the journal, for example article aggregation, systematic
distribution via e-mail lists or list servers or share buttons…”

But can publishers outlaw the button? When
I put the question to Rodrigues earlier this year he replied,
“It is at least very questionable that publishers would have any solid legal
ground to act against the button use, and, on the other hand, it would give
them very bad publicity. So, from a cost-benefit point of view, I think the
button is not a high priority for publishers.”

In fact, suggests
Harnad, the “copy request” button is not a “share button”. Rather it is, “a
one-on-one eprint request, from one requestor, to the author, with one click
each. It is not automatic. Nor is it article aggregation, systematic
distribution or a ‘share button’ (as in research-index, academia.edu — and
Mendeley, till Elsevier bought it!) The lawyers are just trying to use and
include every menacing word they don't understand.”

Uncertainty

Is Elsevier really targeting the “copy
request” button with its new policy? More importantly, does it believe it to be
unlawful to use the button? “It’s not an easy and straight forward question you
ask, although it is a good one, and we too are thinking this through,” replied Elsevier.
“Our policies do permit private sharing of accepted manuscripts by repositories
during their embargo period, and the share button can facilitate this. The policies also prohibit systematic
distribution in this way. So at low
volume, on non-commercial repositories, to users who want access for non-commercial
purposes I don’t think we would have any problem. A challenge is distinguishing this use case
from others.”

We can safely assume that Elsevier (and
other scholarly publishers) do not like the “copy request” button, and that
they would be happy to see it to go away. The problem publishers face, of
course, is that repositories are black boxes so far as the workings of the copy
request button is concerned. They don’t know how it is being used, by whom, and
for what purposes. But if evidence turned up suggesting that papers released
via the button were being widely distributed and/or used for commercial
purposes they would surely take action to prevent it, and perhaps seek to have
the button outlawed in toto.

The problem for researchers, by
contrast, is that Elsevier’s move — combined with the lack of clarity over its
legal status — makes using the button appear more risky. As Harnad et alnoted in their
article about the button, researchers “are fearful of what they do not know, or
do not understand.”

And the problem for the OA movement is that,
since the button is viewed as an integral and essential part of the ID/OA
mandate, there must now be greater concern about the likely efficacy of the
HEFCE policy. After all, OA advocates maintain that embargo-delayed access
(even when it is as short as six months) — “is next to useless” and “not open
access in any common-sense interpretation of the term.” (See comment #4 here
for instance).

But what are HEFCE’s views on these
matters? The spokesman I contacted began by asserting that HEFCE’s policy is
not in fact an ID/OA policy. As he put it, “Our policy requires that open access
is granted as soon as possible after deposit, and no later than the embargo
maxima set out in our policy (12 months for REF Main Panels A&B, 24 months
for C&D). This is different from the model ID/OA policy described
by Stevan Harnad, which states that ‘only depositing itself needs to be
mandated’ and ‘setting the access privileges to the full-text can be left up to
the author’, with ‘open access strongly encouraged, but not mandated’.”

He added that the wording in the HEFCE policy
stating that closed deposits will be admissible to the REF “refers mainly to
papers that are still under embargo at the point they are submitted to the
REF.”

And that, of course, is the point of implementing
the button.

With this thought in mind, I asked if HEFCE
believes that the button is lawful, and whether it sanctions its use. “We have
not sought legal advice on the status of the ‘copy request’ button,” the HEFCE
spokesman replied. “We note that some
commentators hold that ‘fair dealing’ provisions within UK copyright law
would cover its use, but we don’t believe that its legal status has been tested
in the courts.”

He added, “It is for institutions, and
for those that operate subject repositories, to decide whether to implement the ‘copy request’ button in their systems. This is neither a stipulation of our
policy, nor a matter that requires our approval.”

In short, HEFCE is unwilling to commit
itself on use of the button, and Elsevier is keeping its options open.

This puts institutions in a difficult
place: they will have to decide for themselves whether implementing the copy
request button is lawful. And in today’s increasingly risk-averse culture, we
must question whether university lawyers in the UK would be any more willing to
sanction its use than the lawyer in the US university I referenced above. What
we don’t know, of course, is how many repository managers have actually raised
the question with their legal departments.

The hassle factor

In the meantime, gold OA advocates are
arguing that Elsevier’s move heralds the death of green OA. As PLOS co-founder Michael Eisen was quick to note — in a
blog post to which he attached the inflammatory title “the inevitable failure
of parasitic green open access” — by changing its policy Elsevier has reminded
us that green OA always had a “fundamental logical flaw”. He added: “It should
always have been clear that the second Elsevier saw green OA as an actual
threat, they would no longer side with the angels. And that day has come.”

Eisen continued, “I hope IRs will
continue to grow and thrive. Stevan and other green OA advocates have always
been right that the fastest — and in many ways best — way for authors to
provide open access is simply to put their papers online. But we can [no]
longer pretend that such a model can coexist with subscription publishing. The
only long-term way to support green OA and institutional repositories is not to
benignly parasitize subscription journals — it is to kill them.”

What Eisen ignores here is the fact that
in pioneering use of article-processing charges PLOS (along with fellow OA
publisher BioMed Central) created the enabling environment that has allowed subscription
publishers to appropriate gold open access. As such, we can expect the current
oligopoly to continue to dominate scholarly publishing, and in an
undesirable way.

But if Eisen is right to predict that green
OA is set to fail, it is unlikely to be a direct consequence of publisher
embargoes, or legal uncertainty over the “copy request” button. Rather it will be
because libraries are finding it increasingly difficult to manage the
escalating number of ever more complex (and sometimes incompatible) institutional
and funder mandates, the constantly changing self-archiving policies of
publishers (and the shifting embargo periods) plus widespread confusion over article versions.
All of this is creating a horrendous and expensive bureaucratic headache, and one
which universities are ill equipped to cope with. At the same time, they face
the nightmare of trying to manage the payment of hundreds or thousands of APCs.

All too aware of this, publishers appear
to have come up with a cunning plan. On cue, Elsevier is trialling what it
calls its Institutional
Repository Program. Universities taking part in
the program will have access to an API that provides a) metadata on Elsevier
articles, b) tools for checking full text entitlements, and c) access to the
best available version of an article. (See this chart
for more detail). In practice, what Elsevier is offering is to take on much of
the work required to manage green OA.

Of course, Elsevier is not
doing this out of the goodness of its heart. The quid pro quo seems to be that libraries hand back access provision
to publishers. By doing so, they can leave decisions about when a paper becomes
OA, and which version to use, to publishers. And they don’t need to engage in
the expensive process of creating their own metadata for the papers their
faculty produce, because publishers will feed their metadata to co-operating repositories.

The benefit for publishers
here is that this allows them to take control of green OA — to appropriate it
much as they are appropriating gold OA. And the more control they have over
green OA, the more power they have to manage and direct the transition to open
access. Specifically, they will be able to increasingly weaken green OA, whilst
pushing researchers and funders towards gold OA. And the first step in this
process is presumably to persuade libraries that institutional repositories need
only link to the “version of record” on the publisher’s site, they do not need to host the
full-text themselves.

In other words, even when
papers become open access it will be the publisher who controls that access,
with repositories acting merely as portals to the content, not the source of
it.

Clearly, not all
institutions will want to partner with publishers in this way, and institutional
repositories will doubtless continue to host the full-text of other document
types. But as the complexities of managing green OA come more sharply into
focus many libraries will find the option of being able to outsource most of
the work to publishers hard to resist.

This suggests that it will
be the hassle factor of managing self-archiving that will kill off green OA, not
publisher embargoes as such, or uncertainty over the button.

The long game

This is not just speculation,
or publisher wish fulfilment. Libraries are already moving in this direction. For
instance in February, after taking part in the pilot of Elsevier’s
Institutional Repository Program, the Dean of University Libraries at the
University of Florida, Judith Russell, explained in a webinar how she and her library colleagues have come
to change their views about the role of a repository vis-à-vis scholarly papers.

As she put it, they now see
it as “a metadata repository and a vehicle for discovery”. As such, it will “not necessarily deliver the full
text of the article.”

One benefit of partnering
with publishers in this way, she added, is that it “reduces the burden on the
author of having to get the manuscript copy to us … [since] ... we can rely on Elsevier
to deliver both the metadata and the access to the content. So we have [also] reduced
the effort that we would make chasing authors for their manuscript.”

It was this pilot, explained Alicia Wise on Twitter that “informed the change” to
Elsevier’s sharing and hosting policies.

Meanwhile, we can see
publishers pushing in the same direction in the US with the CHORUS project.

In the UK, HEFCE would doubtless
point out that its OA policy requires not just that metadata is deposited in
repositories, but the full text too. But if in a year or so — when it has
become apparent that complying with its policy is proving too difficult and
expensive for research institutions to manage effectively — universities and/or
publishers turn up at HEFCE’s door and point out that publishers are better
equipped to manage green OA, and that they are willing to feed institutional repositories
with the metadata they need for REF compliance purposes, would they not be likely
to get a sympathetic hearing?

Likewise if — when it has
become clear just how difficult it is proving to comply with the requirements
of the US OSTP
Memorandum — publishers go to the federal agencies
subject to the memorandum and suggest that, rather than spending millions of
dollars building their own repositories (or piggy-backing on PubMed Central),
they could instead use the CHORUS service to direct users to scholarly papers
on publisher’s web sites, would they not get a sympathetic hearing?

This is surely the long game
publishers are playing: appropriate gold OA in a way that preserves their
profits, while simultaneously seek to appropriate green OA in order to control
it, and then gradually phase it out, thus ensuring a transition to a pay-to-publish
environment that best suits their needs, and at a cost based on their asking
price.

But we need to ask: would
this not be the best outcome? Does it matter how open access is achieved, as
long as it is achieved?

Actually, it does matter. As
we noted, one of the main promises of the
OA movement was that open access would solve the affordability problem that has
held universities in its iron fist for several decades now — the so-called “serials crisis”. Pay-to-publish
gold OA may seem like a good solution, but if it proves as expensive as (or
more expensive than) subscription publishing, how will the research community afford
it?

True, gold OA allows universities to
shift some of the cost burden on to the shoulders of funders, but not everyone
has a funder like RCUK willing to pay for APCs. As Aaron McCollough put
it recently, “If we aren’t careful, current access inequities (insufficient
library purchasing power) could be replaced by a different access gap
(exclusion of authors working at institutions that can’t afford APCs).”

And even if the
affordability problem is not as serious as many claim, is it right that
publishers should be able to continue plundering taxpayer’s money while
offering so little value in return?

5 comments:

This is just all wrong. The future of open access is to get publishers completely out of the loop. Journals will be run by scholarly societies. Editors and reviewers (and authors) will, as the mostly do now, work for free. The technical aspects of journal production will be handled by software that is - for some incomprehensible reason - yet to be written. That is the bottleneck right now. The need is there. One of these months, someone will do it. I could do it. But I am too busy editing and producing a journal: http://journal.sjdm.org.

I would very interested in the major funders take on this publisher proposal, are they still willing to finance the publisher keeping the digital asset and extorting a fee to access it, even though they provide the metadata freely and assist with compliance management? The digital object, which is the crucial component remains in possession of the publisher. For me, open access achieves two things.

1. Taking back possession of the digital object.2. Making the same digital object freely downloadable.

As simple as that.

The publishers, do not "publish", they are simply digital object stores.

It is high time that libraries realise, they are also stores of digital objects, not only print objects!